(1977). See also, State v. Curtis, 195 N.J. Super. 354 (App.
Div. 1984); State v. Centalonza, supra.
Ordinarily, the flight occurs in the context of
departure immediately following or shortly after the
occurrence of the criminal event. In State v. Andrial, 150
N.J. Super. 198 (Law Div. 1977), defendant failed to
appear on the fourth day of trial and testimony revealed
that he fled to escape the potential consequences of the
jury verdict. Ruling in favor of the State’s request for a
flight instruction, the court expressed the view that flight
during trial is relevant and probative to prove
consciousness of guilt. See also State v. Melendez, 129 N.J.
48 (1992).
Similarly, in State v. Tomaras, 168 N.J. Super. 418
(Law. Div. 1979), defendant escaped from the Bergen
County Jail where he had been incarcerated pending trial
on a murder change. The court expressed the view that
the inference of a consciousness of guilt rests on even
firmer ground when a defendant escapes from
incarceration, since the possible reasons for flight of an
innocent person from a crime scene, i.e., a desire to avoid
possible blame or involvement, do not apply where one
has already been apprehended indicted and incarcerated
for an offense. It is also probable that only one who
expects his guilt to be proved at trial will attempt to
escape, while an innocent man will stay for trial in order
to clear his name and win lawful liberty. See also State v.
Petrolia, supra (flight while on bail).
In State v. Apostolis, 133 N.J. Super. 175 (App. Div.
1975), the defendant acknowledged that consciousness
of guilt may properly be demonstrated by evasive flight
but contended that the reference in the jury charge to
“unexplained” flight unconstitutionally infringed
defendant’s privilege against self-incrimination. Reject-
ing this contention, the court cautioned that care should
be exercised by trial judge to avoid language which might
be misunderstood to impose a burden upon defendant
which is not his. While it is necessary for the judge to
instruct the jury that motive for departure is an essential
element with respect to consideration of flight as evidence
of guilt, this should be done by charging the jury that
flight, if factual, may be considered as evidence of
consciousness of guilt only after a determination from all
the evidence in the case that the purpose of the departure
was to evade accusation or arrest. See also State v. Andrial,
supra.
In State v. McNeil, 303 N.J. Super. 266 (App. Div.
1997), the defendant’s convictions were reversed, in part,
because the trial court gave an inappropriate flight
charge. The McNeil court found that the trial court’s
flight charge suggested to the jury that that the judge
believed defendant to be the perpetrator. Id. at 275.Evidence of attempted suicide by a defendant
ordinarily can be grounds for a flight charge. State v.
Mann, 132 N.J. 410, 417 (1993); cf. State v. Martini,
131 N.J. 176, 285-286 (1993)(flight is not relevant to
establish the death penalty aggravating factor that a
defendant killed his victim in order to escape detention).II. FLIGHT TOLLS STATUTE OF LIMITA-
TIONS
N.J.S.A. 2C:1-6f provides that the statute of
limitations does not apply to any person fleeing from
justice.III. AGGRAVATING FACTOR TO CAPITAL
MURDER
N.J.S.A. 2C:11-3g provides that it is an aggravating
factor if the murder was committed while the defendant
was engaged in flight after committing or attempting to
commit robbery, sexual assault, arson, burglary or
kidnapping.IV. USE OF FORCE TO ARREST
N.J.S.A. 2C:3-7 permits the use of deadly force by a
peace officer or someone summoned and assisting a peace
officer to prevent the escape of certain felons. In Tennessee
v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985), the Court held that use of deadly force violated
the Forth Amendment unless the suspect committed a
crime of violence or endangered the officer or a third
person in the course of the escape.V. ENHANCED SENTENCES
N.J.S.A. 2C:43-6c (the Graves Act) requires
mandatory incarceration with parole ineligibility for
using a firearm while in the course of committing certain,
including the immediate flight therefrom.